Immigration

On March 24, 2015, United States Citizenship and Immigration Services (USCIS) published an updated Policy Memorandum on the L-1B nonimmigrant visa classification for specialized knowledge workers. USCIS requests that the public review the memo and provide feedback by May 8, 2015. The final memo is effective on August 31, 2015.

The US District Court for the Northern District of Florida granted the DOL's motion for a temporary stay of the court's order in Perez v. Perez vacating the DOL's 2008 H-2B regulations, allowing the DOL to process H-2B prevailing wage and labor certification applications until April 15, 2015. The DOL and US Citizenship and Immigration Services (USCIS) are jointly preparing a new rule governing the H-2B program that is expected to be promulgated by the end of April.

On March 8, 2015, President Obama issued an Executive Order imposing sanctions on certain parties in Venezuela. The Executive Order is directed at any person or entity found to have engaged in or supported human rights violations and public corruption in Venezuela. The Executive Order includes restrictions on immigrant and nonimmigrant entries for Venezuelans found by the Secretary of the Treasury (in consultation with the Secretary of State) to meet the terms of the Executive Order.

The Equal Employment Opportunity Commission's (EEOC) Miami office and the Philippine Embassy's Consular Section in Washington DC signed a Memorandum of Understanding (MOU) to collaborate on preventing discrimination in the workplace by providing resources to Philippine nationals regardless of immigration status.

In Perez v. Perez, the US District Court for the Northern District of Florida permanently enjoined the DOL from enforcing its 2008 H-2B regulations, holding that the DOL lacked authority to engage in legislative rulemaking under the H-2B program and enact the 2008 regulations. As a result, the DOL stopped all H-2B prevailing wage and labor certification processing. United States Citizenship and Immigration Services (USCIS) also announced that it has suspended processing of H-2B petitions while the government determines its options.

In United States v. George, the US Court of Appeals for the Second Circuit upheld a criminal conviction of a woman for harboring an unauthorized worker and further upheld forfeiture of the woman's mansion valued at nearly $2 million as an appropriate penalty under the harboring statute that did not violate the Eighth Amendment's prohibition against excessive fines. The unauthorized worker was employed by the woman from 2005 to 2011, and had worked for the woman in the mansion for part of that time.

The National Labor Relations Board's (NLRB) General Counsel issued a memorandum updating its procedures for handling immigration status issues in unfair labor practice (ULP) proceedings and investigations. The memorandum requires NLRB regional offices to contact the NLRB's Division of Operations-Management promptly once aware that immigration status issues may affect the NLRB's ability to litigate or remedy a ULP and discusses procedures in the investigation and liability stages of a matter. It also provides guidelines for fostering interagency cooperation, exploring alternative ULP remedies and obtaining formal settlements in ULP cases when immigration status issues arise.

The U.S. Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking lawful permanent residence (LPR) status for employment purposes. The new rule is intended to reduce the economic burden on H-1B nonimmigrants and their families which often lead H-1B nonimmigrants to abandon their efforts to remain in the United States. Beginning on May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting applications from eligible H-4 dependent spouses seeking employment authorization.

The New York and Philadelphia District Offices of the Equal Employment Opportunity Commission (EEOC) signed a Memorandum of Understanding (MOU) with the Philippine Consulate General to work together to provide education, protection and enforcement to Philippine citizens in the US concerning their workplace employment rights.

The US District Court for the Southern District of Texas, in Texas v. United States, issued a preliminary injunction temporarily blocking a portion of President Obama's executive actions on immigration. The injunction halts the Department of Homeland Security's implementation of an expansion to the Deferred Action for Childhood Arrivals program and a new Deferred Action for Parental Accountability program.

The H-1B nonimmigrant visa classification is subject to an annual cap on new H-1B approvals. The filing period for new H-1B visas available in FY2016, which begins on October 1, 2015, runs from April 1 to April 7, 2015. Practical Law has many resources to assist employers filing H-1B petitions for foreign national workers.

This US immigration update discusses Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., in which the US Court of Appeals for the Eleventh Circuit, on rehearing, reaffirmed that an I-140 visa petition beneficiary has sufficient interest in the outcome of an I-140 petition filed on his behalf by a former employer that the United States Citizenship and Immigration Services (USCIS), if it wishes to issue a notice of intent to revoke (NOIR) the I-140 visa petition, should issue the NOIR to the beneficiary of the I-140 petition and give that beneficiary the opportunity to respond.

This immigration update addresses three recent developments affecting the H-2B nonimmigrant visa classification, used by employers to employ temporary non-agricultural foreign workers. First, the Department of Labor (DOL) issued a Notice of Intent to Issue a Declaratory Order and request for comment confirming its exclusive authority to make legal and policy determinations to administer and enforce the H-2B temporary labor certification program. Second, the DOL announced its procedures for H-2B prevailing wages following the Court of Appeals for the Third Circuit decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis. Finally, the US District Court for the Northern District of Florida granted summary judgement to the plaintiffs in Bayou Lawn & Landscape Servs., et al. v. Perez.

In Comite' De Apoyo A Los Trabajadores Agricolas v. Perez, the US Court of Appeals for the Third Circuit dismissed the district court's judgment holding that the case was not ripe for review, and issued a decision vacating the portion of the H-2B wage rule and the DOL's 2009 Wage Guidance permitting the use of employer-provided surveys in prevailing wage determinations as arbitrary and capricious.

A notice by US Citizenship and Immigration Services (USCIS) reminds EB-5 regional centers that received designation before September 30, 2014, that they must submit Form I-924A to the USCIS by December 29, 2014. The form is used to show the continuing eligibility for regional center designation.

President Obama announced several executive actions overhauling pieces of the US immigration system. Initiatives announced by the President include deferred action for certain undocument immigrants, enforcement initiatives and clarifications to improve legal immigration sponsorship, employment of foreign workers and benefits for researchers and entrepreneurs.

The US Department of Homeland Security (DHS) designated Liberia, Guinea and Sierra Leone for temporary protected status (TPS) for a period of 18 months, effective November 21, 2014. TPS beneficiaries are eligible to remain in the US and to request employment authorization documents that can be used to satisfy employment eligibility requirements.

On November 6, 2014, the US Department of Labor (DOL) announced that it had renewed partnership agreements with ambassadors representing Mexico, the Dominican Republic, El Salvador, Nicaragua and Costa Rica at a ceremony at the DOL headquarters. Under the renewed agreements, the DOL's Wage and Hour Division (WHD) and the Occupational Safety and Health Administration (OSHA) will continue working with embassies and consulates to educate workers from these nations, including those working in the US with H-2A and H-2B visas, about laws governing safety, wage and hour, and health issues.

This immigration update addresses Fogo de Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., in which the US Court of Appeals for the District of Columbia reversed the district court's grant of summary judgment for the government, in a matter regarding L-1B visas for foreign chefs. The DC Circuit held that the US Citizenship and Immigration Services's (USCIS) Administrative Appeals Office (AAO) provided insufficient reasoning to ban a chef's cultural and life experiences from constituting specialized knowledge under the Immigration and Nationality Act (INA). In addition, the Appeals Office did not provide substantial evidence supporting its finding that the potential visa recipient did not complete the proper company training.

The National Labor Relations Board (NLRB) has signed a Memorandum of Understanding (MOU) with the Department of Foreign Affairs of the Republic of the Philippines, with the aim to educate Filipino employers, employees and business owners in the US on their rights and responsibilities under the National Labor Relations Act (NLRA).

The Department of State (DOS) has released a final rule amending the general Exchange Visitor (J-1 Visa) Program rules governing the designation of sponsors and the overall administration of the exchange visitor program.

US Citizenship and Immigration Services (USCIS) has announced two developments concerning its internet-based E-Verify service. First, USCIS will begin purging E-Verify records that are more than ten years old and employers may need to download records before they are purged. Second, E-Verify will launch a new myE-Verify website to enhance employee protection and education.

This US immigration update discusses Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., in which the US Court of Appeals for the Eleventh Circuit held that an I-140 visa petition beneficiary has sufficient interest in the outcome of an I-140 petition filed on his behalf by a former employer that the United States Citizenship and Immigration Services (USCIS), if it wishes to issue a notice of intent to revoke (NOIR) the I-140 visa petition, should issue the NOIR to the beneficiary of the I-140 petition and give that beneficiary the opportunity to respond.

In Labriola Baking Company, the National Labor Relations Board (NLRB) overruled the recommendation of an NLRB hearing officer and held that non-English-speaking bargaining unit members would reasonably understand their employer's mistranslated comments about hiring legal workers to replace them if they engaged in a predicted strike was a threat that if they did not decertify the union in a pending decertification election the employer would retaliate by reporting them to immigration authorities. The NLRB ordered a new decertification election because the employer's comments constituted objectionable conduct under the National Labor Relations Act (NLRA) that reasonably would have interfered with employees' free choice to support the union and engage in protected union activities such as striking.

This California immigration Law Firm Publication by Jackson Lewis P.C. discusses Assembly Bill 2751 (AB 2751), which broadens protections and remedies for those subjected to immigration-related retaliation. The bill, signed into law by Governor Jerry Brown, expands the definition of "unfair immigration-related practice" found in AB 263 and SB 666 (previously enacted laws protecting immigrants from retaliation), to include an employer's filing or threat to file a false complaint with any state or federal agency, in addition to the police or immigration authorities, in retaliation for an employee's protected activity. AB 2751 authorizes an employee subjected to unfair immigration-related practice to bring a civil action for equitable relief and damages. It also clarifies that employees who face illegal retaliation will be awarded a $10,000 penalty for each violation. The new law allows courts to suspend business licenses of offenders based on their number of violations. In addition, the scope of retaliation protection for employees who update their personal information is limited to those who make updates related to work authorization. Previous protections extended to employees who corrected misrepresentations about their education or criminal background. AB 2751 will take effect on January 1, 2015.

This US immigration update addresses a Memorandum of Understanding (MOU) signed by the Equal Employment Opportunity Commission (EEOC) and the Mexican Ministry of Foreign Affairs. The MOU is designed to strengthen their collaborative efforts to provide immigrant, migrant and other Mexican workers with information and guidance about their rights and responsibilities under the laws enforced by the EEOC.

This US immigration update discusses Kutty v. US Department of Labor, in which ten physicians employed by a medical clinic operator under numerous different corporate entities filed a complaint with the Department of Labor (DOL) claiming Labor Condition Application (LCA) wage violations under the Immigration and Nationality Act (INA). The US Court of Appeals for the Sixth Circuit held that the costs, including attorneys' fees, of obtaining H-1B visas and J-1 waivers are business expenses and that the Administrative Law Judge (ALJ) did not err in piercing the corporate veil and holding the business owner personally liable for back wages and penalties.

The National Labor Relations Board (NLRB) has signed a Memorandum of Understanding (MOU) with the Ministry of Foreign Affairs and Human Mobility of Ecuador, with the aim to educate Ecuadorian employers, employees and business owners in the US on their rights and responsibilities under the National Labor Relations Act (NLRA).

A summary of employers' anti-discrimination obligations under the Immigration Reform and Control Act of 1986 (IRCA) and examples of discriminatory practices. This Update also includes resources to assist employers in their compliance with IRCA's anti-discrimination law.

This US immigration update covers glitches in the State Department's Consular Consolidated Database. State Department spokesperson Marie Harf has stated that the glitches crashed the system, resulting in significant delays in processing of passports, visas and reports of Americans born abroad. The system is operational, but delays in visa, passport and birth report applications persist.

In Arizona Dream Act Coalition v. Brewer, the US Court of Appeals for the Ninth Circuit upheld the district court's ruling that the Arizona Department of Transportation's (ADOT) policy of refusing to accept Employment Authorization Documents (EADs) issued to Deferred Action for Childhood Arrivals (DACA) recipients to support an Arizona driver's license application, violates the Equal Protection Clause. The Ninth Circuit also reversed the district court's denial of a preliminary injunction, holding that the plaintiffs (five DACA recipients and the Arizona DREAM Act Coalition) are likely to suffer irreparable harm unless the ADOT's policy is enjoined.

This Law Firm Publication by Fisher & Phillips LLP discusses the California Supreme Court's recent decision in Salas v. Sierra Chemical Co. In this case, Salas, who was laid off after filing a workers' compensation claim, sued for failure to accommodate his disability and retaliation. Right before trial, Sierra learned that Salas was not authorized to work in the US and had provided a false social security number and resident alien card. Sierra moved to dismiss the case based on Salas's unclean hands relying on the after-acquired evidence defense. Sierra showed it had a long-standing policy against hiring unauthorized workers and the Court of Appeal found in its favor. The California Supreme Court reversed, concluding that where an employee misrepresents his employment authorization, the federal Immigration Reform and Control Act (IRCA) does not preempt California's anti-discrimination law, which states that its protections are available to all regardless of immigration status. The Supreme Court held, however, that Salas may not recover lost wages for the period after Sierra discovered his misrepresentations because IRCA prohibits an employer from continuing to employ a worker it knows is unauthorized. The Court also suggested that particularly egregious conduct may limit recovery further.

In Scialabba v. Cuellar De Osorio, the US Supreme Court reversed the US Court of Appeals for the Ninth Circuit, holding that the Board of Immigration Appeals (BIA) reasonably interpreted Section 203(h)(3) of the Immigration and Nationality Act (INA). This section, added by the Child Status Protection Act (CPSA), allows the petitions of aged-out derivative beneficiaries to retain their original priority dates, and only applies to aged-out derivative beneficiaries with qualifying relationships with their original sponsors whose petitions therefore seamlessly convert from one family preference category to another. The aged-out derivative beneficiaries' petitions that require substituting sponsors do not qualify for the statute's priority date retention provision because they do not automatically convert to a new and valid family preference category.

The Department of Labor (DOL) reports that the DOL's Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA) and National Labor Relations Board (NLRB) met with representatives from Mexican Consulates in Arizona to renew workplace protection agreements. The DOL has also reported that its WHD has entered into an agreement with the Embassy of the Philippines to increase access to education about workers’ rights under certain US laws.

The US Citizenship and Immigration Services (USCIS) published two proposed rules to expand the employment authorization eligibility requirements for certain H-4 dependent spouses and to update regulations to increase opportunities for H-1B1, CW-1, E-3 and EB-1 workers to remain in the US. Comments are due by July 11, 2014.

Under the Immigration Reform and Control Act (IRCA), every US employer must complete a Form I-9 for each employee within the first three days after the employee begins working. An employer that hires an employee who will work at remote worksites may designate an agent to complete the Form I-9. However, an employer must select an agent wisely, as it is liable for IRCA violations flowing from the agent's errors and omissions. Practical Law has a resource to help employers that must designate an agent to complete the I-9 form for remote workers.

The White House has released a Fact Sheet announcing imminent publication of several proposed rules by the US Department of Homeland Security (DHS) to accelerate the success of talented foreign entrepreneurs and other highly-skilled immigrants in the US. The proposed regulations will include rules authorizing employment for spouses of certain highly-skilled H-1B visa holders and enhancing opportunities for outstanding professors and researchers.

The United States Citizenship and Immigration Services (USCIS) announced that as of April 7, 2014, it has received a sufficient number of new H-1B visa petitions to reach the statutory cap for fiscal year 2015 (FY2015). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (commonly called the "advanced degree cap").

This Law Firm Publication by Jackson Lewis P.C. discusses H.B. 181, recently approved by New Mexico Governor, Susana Martinez. H.B. 181 requires employers to post a notice about the National Human Trafficking Resource Center Hotline. Employers that are subject to the state Minimum Wage Act must post the notice conspicuously in English, Spanish and any other language spoken by at least 10% of workers. The new law becomes effective July 1, 2014.

The US Citizen and Immigration Services (USCIS) has issued a Form I-9 Employee Information Sheet for employers to give to employees to provide guidance on the I-9 process and answers to common questions.

Errors on the documents a person presents for identity and employment authorization during the Form I-9 process can cause significant stress for the employer and employee if the employer participates in E-Verify. These errors cause the E-Verify system to return a Tentative Nonconfirmation (TNC) and must be fixed before the employee is found employment authorized. TNCs can be issued regardless of the employee's citizenship or immigration status, and can result in a great deal of stress and lost work time while the employee has the error corrected.

US Citizenship and Immigration Services (USCIS) announced it has enhanced its e-Request customer service inquiry tool and has expanded to allow customers to submit requests for disability accommodations.

The Wage and Hour Division (WHD) of the Department of Labor (DOL) has entered into an agreement with the Consulate General of Mexico in El Paso, Texas to educate Mexican nationals in Texas and New Mexico about their rights as employees under federal law, regardless of their immigration status.

In Louisiana Forestry Ass'n Inc. v. Sec'y U.S. Dep't of Labor, the US Court of Appeals for the Third Circuit affirmed the judgment of the district court, holding that the DOL has the authority to promulgate rules regarding the H-2B visa program and, under that authority, a new regulation issued by the DOL governing the calculation of the minimum wage a US employer must offer in order to hire foreign workers under the H-2B visa program was validly implemented. The Third Circuit acknowledges that this decision may create a circuit split with the Eleventh Circuit.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses legislation protecting foreign workers that California enacted in October 2013 that became effective on January 1, 2014. In part, the new legislation prohibits employers from taking adverse action against an employee for attempting to exercise a right under California's labor laws or updating or attempting to update personal information unless the changes relate to skills, qualifications or knowledge required for the job. In addition, employers may not report or threaten to report a current, prospective or former employee's suspected citizenship or immigration status, or that of afamily member, in retaliation for their exercise of a right under state or local labor laws.

On January 2, 2014, the California Supreme Court ruled in In re Garcia on Admission, as a matter of first impression, that an undocumented immigrant may be eligible for admission to the California State Bar. The court held that California's recently enacted state law authorizing undocumented immigrants to be admitted to the state bar satisfies the requirements of Section 1621 of Title 8 of the United States Code, which generally restricts such benefits for undocumented immigrants.

This Law Firm Publication by Constangy, Brooks & Smith, LLP summarizes new California employment laws that will take effect January 1, 2014. The new laws relate to topics including wage and hour, discrimination and retaliation, leaves of absence and immigration.

The US Citizenship and Immigration Services (USCIS) has released new and revised E-Verify Memorandums of Understanding (MOUs), effective December 8, 2013 for new users and January 8, 2014 for existing users.

The US Citizenship and Immigration Services (USCIS) announced that revised Notice of E-Verify Participation and Office of Special Counsel Right to Work posters are now available. USCIS also announced that it will release new and revised E-Verify Memorandums of Understanding (MOUs) on December 8, 2013.

In Victor Rivera v. Peri & Sons Farms, Inc., the US Court of Appeals for the Ninth Circuit held that the Fair Labor Standards Act (FLSA) required the employer to reimburse its migrant farmworkers in the US under the H-2A visa program during their first workweek for inbound travel and immigration expenses to the extent those immigration expenses decreased their compensation below minimum wage.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses three immigration-related bills recently signed by Governor Brown, which may require California employers to modify their policies and procedures. The Unfair Immigration-Related Practices law (AB 263) and the Retaliation Based on Immigration/Citizenship Status law (SB 666) go into effect January 1, 2014 and expand anti-retaliation protections for employees and add to prohibited employer Form I-9 practices. The Driver's License for Undocumented Residents law (AB 60), effective January 1, 2015, allows undocumented California residents to obtain valid driver's licenses, allthough the licenses cannot serve as evidence of valid work authorization for I-9 purposes.

The US Citizenship and Immigration Services (USCIS) announced that E-Verify has resumed operations following the federal government shutdown and described actions for employers enrolled in E-Verify to take for certain categories of employees.

This Law Firm Publication by Jackson Lewis LLP discusses that on September 8, 2013, Iowa joined Mississippi, Florida and Idaho to become the fourth state to participate in the Records and Information from DMV's for E-Verify (RIDE) program. The RIDE program, which seeks to boost the accuracy of the E-Verify employment eligibility verification process, allows employers to verify information from employees who submit a state driver's license or state identification document in the course of the I-9 employment verification process. Additional states are expected to sign on to the RIDE program.

E-Verify is an employment eligibility verification tool for the modern age. Use of E-Verify, the US government's free electronic work authorization verification tool, is voluntary for most employers, but required for certain federal contractors and employers in certain states. While Congress continues to debate comprehensive immigration reform, including mandatory E-Verify use by all employers, employers should be aware of what E-Verify is and how it works.

The National Labor Relations Board (NLRB) has entered into a cooperative agreement with the Ministry of Foreign Affairs of Mexico, with the aim to educate Mexican employers, employees and new immigrants in their rights and responsibilities under the National Labor Relations Act (NLRA).

A resource to help employers and their counsel understand how to complete the I-9 form for foreign employees in the US using the US Customs and Border Protection's (CBP) new automated I-94 Arrival-Departure card.

The Department of Justice (DOJ) and the National Labor Relations Board (NLRB) have entered into a Memorandum of Understanding (MOU) allowing the two agencies to share information, refer matters to each other and coordinate investigations.

This Law Firm Publication by Fisher & Phillips LLP notes that as of July 1, 2013, all private employers in Georgia with more than ten employees must be enrolled in and using E-Verify for all new hires or re-hires. The Illegal Immigration Reform and Enforcement Act, requiring the use of E-Verify, was enacted in 2011, and was phased in over the last two years based on the number of full-time employees an employer had as of January 1 of each year.

In Flores v. USCIS, the US Court of Appeals for the Sixth Circuit held that a Honduran immigrant who entered the US without inspection, but has held valid temporary protected status (TPS) since 1999, can adjust to lawful permanent resident (LPR) status (and obtain his green card) on the basis of his marriage to a US citizen.

This Law Firm Publication by Jackson Lewis LLP discusses the New York State Supreme Court Appellate Division, Second Department's April 17, 2013 holding in Kausal v. Educational Products Information Exchange Institute that an H-1B work visa application established an employment contract sufficient to support the employee’s breach of contract claim. The court ruled that the application, sworn-to and executed by the employer's project manager, contained all of the material terms indicating an employment contract and left nothing to be further negotiated. The court noted that the contract violations were also federal labor violations, as the employer failed to pay the employee the wages indicated on the visa application.

Employers are reminded that the new I-9 Form is required beginning on May 7, 2013. The new Form I-9, published by US Citizenship and Immigration Services (USCIS) on March 8, 2013, replaces all prior versions.

The United States Citizenship and Immigration Services (USCIS) announced that as of April 5, 2013, it has received a sufficient number of new H-1B visa petitions to reach the statutory cap for fiscal year 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (commonly called the "advanced degree cap").

US Customs and Border Protection (CBP), an agency in the Department of Homeland Security (DHS), issued an interim final rule changing the definition of the term "Form I-94" to include an electronic as well as a paper format. The revisions will allow CBP to create an electronic version of the Form I-94 Arrival-Departure Record and transition to an automated Form I-94 process.

US Citizenship and Immigration Services (USCIS) has announced that premium processing for cap-subject H-1B petitions will begin on April 15, 2013. This temporary adjustment has been made to accommodate the historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the H-1B filing period.

US Citizenship and Immigration Services (USCIS) has issued a revised Form I-9 for employers to use during employment eligibility verification. The new form is two pages rather than one and has more data fields for employee information, a revised layout and improved instructions.

In Lamonica v. Safe Hurricane Shutters, Inc., the US Court of Appeals for the Eleventh Circuit held that undocumented foreign workers are employees who may recover unpaid wages under the Fair Labor Standards Act (FLSA). The court found that the US Supreme Court's prior decision in Hoffman Plastic Compounds, Inc. v. NLRB that the National Labor Relations Board (NLRB) could not award backpay to undocumented aliens terminated for union activity in violation of the National Labor Relations Act (NLRA) did not overrule Eleventh Circuit precedent permitting recovery of unpaid wages under the FLSA.

In Chaudhry v. Holder, the US Court of Appeals for the Seventh Circuit held that a period of stay authorized by the US Attorney General does not constitute lawful status for purposes of 8 U.S.C. § 1255(k).

The Department of Labor (DOL) announced a new online tool, the iCERT Labor Certification Registry, that will provide the public with real-time access to redacted documents in the H-1B, H-1B1, E-3, H-2A, H-2B and permanent labor certification (PERM) employment-based immigration programs beginning July 1, 2013.

The US and Canadian governments have signed a Visa and Immigration Information-Sharing Agreement. Pursuant to the Agreement, both countries will share biographical and biometric information on third country nationals who apply for visas or permission to travel to either country.

An advice memorandum from the General Counsel's Office's of the National Labor Relations Board (NLRB) found that an employer with a union-represented workforce violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by unilaterally enrolling in E-Verify.

This Law Firm Publication by Jackson Lewis LLP discusses the Tennessee Lawful Employment Act (TLEA), which went into effect in January of 2012 and which the Tennessee Department of Labor has just recently begun to enforce. Under the TLEA, employers with more than six employees must either use E-Verify or make and retain copies of one of 11 specified documents. Private employers with 500 or more employees were required to comply with the TLEA as of January 1, 2012, and those with between 200 and 499 employees were required to comply as of July 1, 2012. Employers with between six and 199 employees must be in compliance by January 1, 2013. In determining the number of employees, an employer must count all of its employees, not just those that are physically in Tennessee.

President Obama signed into law S. 3245, which reauthorizes the E-Verify program, the EB-5 Regional Center Program, the Special Immigrant Nonminister Religious Worker Program and the Conrad State 30 J-1 Visa Waiver Program until September 30, 2015.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses North Carolina's E-Verify Legislation, which was signed into law on June 23, 2011. While counties and municipalities were required to participate in the E-Verify program last year, private sector employers will begin their participation on October 1, 2012, starting with employers with 500 or more employees in North Carolina. Employers with at least 100 but fewer than 500 employees must use E-Verify as of January 1, 2013, and employers with at least 25 but fewer than 100 employees must comply by July 1, 2013.

The US Court of Appeals for the Eleventh Circuit recently issued opinions in three cases relating to state immigration laws, holding that several provisions of Alabama's and Georgia's laws penalizing illegal immigrants are preempted by federal immigration law.

This Law Firm Publication by Fisher & Phillips LLP discusses Pennsylvania's Public Works Employment Verification Act, which requires contractors and subcontractors performing public works projects for the state to use E-Verify for all new employees. Effective January 1, 2013, contractors and subcontractors that seek a contract on a project must first submit a form verifying compliance to the public agency awarding the contract. The law prohibits discrimination on the basis of race, ethnicity, color or national origin and also prohibits retaliation against employees who report a violation or assist in a government investigation. The state Department of General Services will enforce the law and perform audits for compliance.

In Paidi v. Mills, the US Court of Appeals for the Second Circuit struck down as unconstitutional a New York law that prevents nonimmigrant aliens from receiving pharmacist licenses. The Second Circuit held that the law violated the Equal Protection Clause because aliens are a suspect class and the state could not distinguish lawful nonimmigrant aliens from other aliens.

On June 25, 2012, the US Supreme Court issued an opinion in Arizona v. United States, invalidating three key provisions of Arizona's immigration law, S.B. 1070. The court also reversed an injunction against a fourth provision.

On June 15, 2012, the US Department of Homeland Security (DHS) announced that young undocumented immigrants will now be eligible for relief from removal proceedings if they were brought to the US under the age of 16, are currently living in the US, are not older than 30 and are in school or have graduated high school, among other requirements. These immigrants will also be eligible to apply for work authorization.

The United States Citizenship and Immigration Services (USCIS) has announced that as of June 11, 2012, it had received a sufficient number of new H-1B visa specialty occupation petitions to reach the statutory cap for fiscal year 2013. In addition, as of June 7, 2012, the advanced degree exemption has been exhausted.

The Administrative Appeals Office (AAO) of the US Citizenship and Immigration Services (USCIS) held in Matter of Skirball Cultural Center that the term "culturally unique," as used in P-3 nonimmigrant visa petitions, is not limited to traditional art forms and may include hybrid or fusion artistic expression.

On May 11, 2012, the Department of State issued a second interim final rule amending the regulatory requirements of the Summer Work Travel category of the Exchange Visitor Program. The second interim final rule builds on the first interim final rule issued in 2011 to further protect the health, safety and welfare of J-1 summer workers.

On May 4, 2012, the Office of the General Counsel of the National Labor Relations Board (NLRB) issued a guidance memorandum explaining that, under the NLRB's recent decision in Flaum Appetizing Corp., employers may not reverify emploment status of employees who are reinstated.

On April 26, 2012, in Bayou Lawn & Landscape Services v. Solis, the US District Court for the Northern District of Florida enjoined the US Department of Labor (DOL) from enforcing its new rule governing the H-2B guest worker program. The plaintiffs claim that the DOL has no authority to issue the rule. Implementation of the new rule is delayed while this case is adjudicated.

The Department of Homeland Security (DHS) designated Syria for temporary protected status (TPS) for a period of 18 months ending on September 30, 2013. TPS beneficiaries are eligible to remain in the US and to request employment authorization documents that can be used to satisfy employment eligibility requirements.

In Vartelas v. Holder, the US Supreme Court held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) does not apply retroactively to disable lawful permanent residents convicted of certain pre-IIRIRA offenses from taking short trips abroad.

The US Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions toward the 2013 Fiscal Year (FY) cap on April 2, 2012. The number of H-1B petitions for FY 2013 is capped by Congress at 65,000, subject to several exemptions.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the employment provisions of Alabama's immigration law. Effective April 1, 2012, Alabama employers must verify the immigration status of its employees using the federal E-Verify program. State contractors must provide a sworn affidavit that they do not knowingly hire, employ or continue to employ unauthorized aliens and that they have been using E-Verify since January 1, 2012.

The US Court of Appeals for the Eleventh Circuit enjoined the enforcement of another two provisions of H.B. 56, Alabama's 2011 immigration law. The enjoined provisions bar residents from knowingly entering into contracts with illegal immigrants and ban illegal immigrants from entering business transactions with state and local governments. Several other provisions remain in effect, pending a full resolution of the appeal by an Eleventh Circuit panel.

The Board of Alien Labor Certification Appeals (BALCA) sitting en banc ruled that an Office of Foreign Labor Certification certifying officer may not deny permanent labor certification based on an employer's failure to provide proof of publication of the State Workforce Agency job order containing the text of the order. In re A Cut Above Ceramic Tile clarifies recordkeeping requirements for PERM labor certification applications.

On February 21, 2012, the Department of Labor published new regulations governing the H-2B visa program for workers performing temporary or seasonal non-agricultural labor or services. These regulations replace the 2009 regulations, and they provide more protections for US workers and H-2B workers, add more requirements for employers to follow, and enhance oversight and enforcement of the H-2B program. The new regulations are effective April 23, 2012.

In Kawashima v. Holder, the US Supreme Court held that lawful permanent residents of the United States who file false tax returns, or aid in doing so, can be deported for committing "aggravated felonies" under the Immigration and Nationality Act.

On January 31, 2012, the US Department of Homeland Security (DHS) announced a series of administrative reforms it will undertake to attract and retain highly skilled immigrants to stimulate US job creation.

The Department of Justice (DOJ) has released guidance on employer best practices during worksite enforcement audits. Employers whose Forms I-9 are audited by US Immigration and Customs Enforcement (ICE) to verify compliance with the Immigration Reform and Control Act of 1986 (IRCA) should follow this guidance to avoid a charge of IRCA based discrimination.

In Flaum Appetizing Corp. the National Labor Relations Board (NLRB) determined that employers found to have discriminated against employees that engaged in concerted activity protected under the National Labor Relations Act (NLRA) must plead specifically and be prepared to offer evidence that a discriminatee is not authorized to work in the US, to challenge a back pay or reinstatement award under Hoffman Plastic Compounds, Inc. v. NLRB. In its decision dated December 30, 2011, the NLRB constructed procedural barriers for employers wishing to avail themselves of that Supreme Court precedent, which held that the NLRB is prohibited from awarding backpay to an undocumented worker who violates the Immigration Reform and Control Act (IRCA). The NLRB struck an employer's Hoffman-related affirmative defense in NLRB compliance proceedings and denied the employer an evidentiary hearing to confirm that discriminatees were not eligible for backpay based on their immigration status. Member Hayes dissented.

In The Matters of Albert Einstein Medical Center and Abington Memorial Hospital, the Board of Alien Labor Certification Appeals (BALCA) reviewed the Employment and Training Administration Certifying Officer (CO)'s denial of permanent labor certification applications made by two hospitals on behalf of their foreign medical residents. The CO's denial was on the grounds that the medical resident positions do not constitute permanent employment. BALCA determined that most medical residency programs do not constitute permanent employment. It vacated the denials and remanded the appeals to the CO to provide them with an opportunity to demonstrate that their residency programs fit the definition of permanent employment as required under the PERM regulations.

The United States Citizenship and Immigration Services (USCIS) has announced that as of November 22, 2011, it had received a sufficient number of new H-1B visa specialty occupation petitions to reach the statutory cap for fiscal year 2012. In addition, as of October 19, 2011, the advanced degree exemption has been exhausted.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses key changes to the South Carolina Illegal Immigration and Reform Act scheduled to take effect January 1, 2012. As of January 1, all South Carolina employers must use E-Verify to confirm the employment eligibility of newly hired employees and may have their employment licenses suspended or revoked for failing to do so.

On October 20, 2011, the United States Citizenship and Immigration Services (USCIS) reversed its September 12, 2011 policy change, and announced that it would return to mailing original notices for immigration petitions and applications directly to attorneys and representatives if the petitioner or applicant has authorized the representation.

The US Court of Appeals for the Eleventh Circuit enjoined the enforcement of two provisions of Alabama's new immigration law, requiring schools to check students' immigration status and allowing police to charge immigrants, unable to show lawful presence, with a misdemeanor. Several other provisions remain in effect, pending a full resolution of the appeal by an Eleventh Circuit panel.

This Ford & Harrison, LLP memorandum covers California's recent enaction of The Employment Acceleration Act of 2011. The new law prohibits California state and local governments from requiring employers to use the federal E-Verify program to check the employment eligibility of new employees. Despite the new law, California employers must continue to comply with the federal Employment Eligibility Verification (form I-9) process as well as the federal E-Verify requirements for federal contractors. Employers are also free to use the E-Verify program voluntarily.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses the US District Court of the Northern District of Alabama's ruling on Alabama's controversial immigration law. The court held that several provisions could not be enforced pending a final judgment on the law's constitutionality. However, the ruling does not affect the provision requiring Alabama employers to use the federal E-Verify program to confirm an applicant's legal immigration status.

Employers that request specific or unnecesary work authorization documents from their employees violate the anti-discrimination provision of the Immigration Reform and Control Act (IRCA). On August 22, 2011, the US Department of Justice reached a settlement with Farmland Foods, Inc. regarding the company's requests for discriminatory documents. Farmland's civil fines are the highest ever assessed in a settlement agreement under IRCA.

In Limanseto v. Ganze & Company, the DOL held that an employer has to pay back wages to a former H-1B employee because it did not terminate the employee according to the requirements of the H-1B program. Specifically, the employer never offered to pay the cost of the employee's return trip.

The NLRB recently held in Mezonos Maven Bakery, Inc. that it lacks authority to award backpay damages to undocumented workers if either the workers or their employer have violated the Immigration Reform and Control Act. The NLRB relied on the US Supreme Court's ruling in Hoffman Plastic Compounds, Inc. v. NLRB.